Mere Pendency Of Criminal Case Does Not Automatically Disqualify Individual From Exercising Right To Long-Term Opportunities Abroad: Delhi HC

While ruling most brilliantly on a very significant legal point with far reaching implications, we see that none other than the Delhi High Court in a most learned, laudable, logical, landmark and latest oral judgment titled Mr Amardeep Singh Bedi vs Union of India & Anr in W.P.(C) 12597/2024 and cited in Neutral Citation No.: 2024:DHC:7643 that was pronounced as recently as on October 1, 2024 has minced just no words to lay down in no uncertain terms that the mere pendency of a criminal case does not automatically disqualify an individual from exercising their right to seek long-term opportunities abroad. It must be noted that the petitioner had earlier approached the Trial Court but the request was denied on the ground that it lacked the jurisdiction to issue such directions. The Delhi High Court noted that the petitioner had been granted anticipatory bail in connection with the FIRs filed against him and the Trial Court had not imposed any restrictions on the petitioner’s travel.

It must be mentioned that the Single Judge Bench comprising of Hon’ble Mr Justice Sanjeev Narula clearly held that, "The primary role of a PCC is to ensure transparency about an individual’s background, not to impose blanket restrictions on the basis of pending cases. Moreover, the Petitioner’s right to work and freedom of movement, must not be unjustly restricted solely on the existence of these FIRs." No denying!

At the very outset, this brief, brilliant, bold and balanced oral judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sanjeev Narula of Delhi High Court sets the ball by first and foremost putting forth in para 1 that, "The Petitioner is an Indian national having a valid Indian passport bearing No. Txxxxxx2 (masked for privacy concerns) issued by the Regional Passport Office in Delhi, India. This passport has been renewed and is valid up to 01st May, 2029."

To put things in perspective, the Bench envisages in para 2 that, "The Petitioner, along with his proprietary concern, M/s Bedi & Bedi Associates, is currently facing two FIRs — No. 15/2013 and No. 58/2013 — registered at P.S. Deshbandhu Gupta Road, Karol Bagh, New Delhi-110005. These FIRs were filed based on complaints from Enforcement Officers of the Employees Provident Fund Organization, alleging that while the Petitioner deducted Provident Fund ("PF") contributions from the wages of employees working at DMRC and NPL sites, he failed to deposit the same in accordance with the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 ("EPF Act")."

As it turned out, the Bench enunciates in para 3 that, "Post registration of the FIRs, a quasi-judicial enquiry under Section 7A of the EPF Act was conducted by the Regional Provident Fund Commissioner, Delhi (North) ("RPFC"). This inquiry culminated in an order dated 28th September, 2019 under Section 7A of the EPF Act to the effect that both the Petitioner and the Principal Employer were jointly and severally liable to deposit the PF contributions as mandated by the EPF Act. Consequently, the Petitioner was directed to deposit a sum of INR 7,485,753/- as assessed by the RPFC. This amount was duly paid by the Petitioner through a demand draft dated 20th March, 2019. Further, the Petitioner has filed petitions seeking the quashing of the aforementioned FIRs, which are pending consideration before this Court."

As we see, the Bench discloses in para 4 that, "In light of the afore-noted background, the Petitioner’s grievance stems from the Respondents’ refusal to issue a Police Clearance Certificate4 which is a crucial requirement for applying under the Start-up Visa Programme at Canada, where the Petitioner intends to set up a business venture. According to Canadian Visa regulations, an applicant must submit a PCC from their country of residence to set up a business in Canada. In compliance with this requirement, the Petitioner submitted an application dated 15th April, 2024 with the Regional Passport Office for the issuance of the said PCC. This was followed by a fresh application on 14th May, 2024 for the same purpose."

Do note, the Bench notes in para 5 that, "In order to address the objections of the Respondents, the Petitioner also approached the Trial Court where the criminal case against him is pending, seeking directions to the Regional Passport Office for the issuance of PCC. However, this request was denied on 26th June, 2024 with the Trial Court noting that it lacked the jurisdiction to issue such directions."

It would be worthwhile to also mention that the Bench observes in para 10 that, "In the present case the Petitioner has been granted anticipatory bail in connection with the FIRs filed against him in 2013. The condition for this bail is that the Petitioner must join the investigation whenever directed by the Investigating Officer. Notably, there is no restriction imposed by the Trial Court on the Petitioner’s travel. It is also pertinent that, aside from these two FIRs, the Petitioner has no other criminal cases against him. Moreover, as per the quasi-judicial proceedings conducted by the RPFC, the Petitioner has fulfilled his liability by making the required provident fund deposits under the EPF Act."

Be it noted, the Bench notes in para 11 that, "Furthermore, the Petitioner holds a valid passport, renewed until 2029, which enables him to travel outside India. He also possesses a valid multiple-entry Visa for Canada, allowing him entry into that country. However, his present concern arises from the specific requirement under Canada’s Start-up Visa Programme, which requires the submission of a PCC from the applicant’s country of residence."

Most forthrightly, the Bench mandates in para 12 propounding that, "In light of the facts disclosed by the Respondent, it is evident that the sole ground for denying the PCC is the existence of pending FIRs against the Petitioner as per the report of Respondent No. 2. However, it must be emphasized that mere pendency of a criminal case does not automatically disqualify an individual from exercising their right to seek long-term opportunities abroad. While Respondent No. 1 – the Ministry of External Affairs, is correct to point out their obligation to provide accurate information to the foreign authorities, this responsibility does not extend to unjustly curtailing the Petitioner’s right to apply for a long-term Visa."

It is worth noting that the Bench then notes precisely in para 13 that, "The legal framework demands that, in cases where criminal proceedings are pending, the individual must seek the necessary permission from the relevant court before traveling. In the instant case the Petitioner has a valid passport and no restrictions on his travel. His endeavour, however, goes beyond mere travel and concerns his right to seek a long-term Visa to establish a business in a foreign country. This relates to his fundamental right under Article 19(1)(g) to engage in an occupation or business. The Petitioner, like any other Indian citizen, holds the constitutional right to pursue any lawful business or trade both within and outside the country as permissible. The ‘adverse’ report given by the Respondent No. 2 objects to the issuance of a PCC on the ground that there are pending criminal cases against the Petitioner and there is no NOC. It must be noted that the Petitioner had approached the Trial Court for the purpose of issuance of an NOC, however as noted above, the request of the Petitioner was denied for lack of jurisdiction."

Most significantly and resultantly, the Bench then deems it fit to hold in para 14 that, "In light of the above, in the opinion of the Court, even though the State has the authority to impose reasonable restrictions on the fundamental rights of a citizen under Article 19(6), in the instant case, denying the Petitioner a PCC due to the mere pendency of FIRs — without any conviction or finding of guilt — constitutes an unreasonable restriction. Therefore, it would be unjust to impose a blanket restriction on his efforts to secure a Visa solely based on the pendency of a case."

Equally significant, the Bench concedes in para 15 what constitutes the cornerstone of this notable judgment postulating that, "While it is acknowledged that adverse information exists against the Petitioner, it is equally relevant to note that his passport was renewed in 2019 for a decade. This renewal signifies that the Passport Authorities did not find any reason at that time to deny him travel privileges. It would be inconsistent for the same authorities to now refuse to issue a PCC solely on the basis of the pending FIRs. The issuance of the PCC will neither impact the ongoing criminal proceedings nor confer any undue advantage upon the Petitioner. The primary role of a PCC is to ensure transparency about an individual’s background, not to impose blanket restrictions on the basis of pending cases. Moreover, the Petitioner’s right to work and freedom of movement, must not be unjustly restricted solely on the existence of these FIRs."

As a corollary, the Bench then expounds in para 16 holding most rationally that, "In light of these considerations, the Court finds that the rights and interests of the Petitioner must be balanced with Respondents’ obligation as a sovereign. The Respondents are thus directed to issue a PCC to the Petitioner explicitly mentioning the pending criminal case against him as well as the fact that the Petitioner has complied with the RPFC’s order by making the required deposit. This would provide complete transparency to the Canadian authorities for their assessment of his Visa application. The prescribed PCC application as per the Passport Rules, 1980 be modified accordingly. The PCC shall be issued in two weeks’ time from today."

Finally, the Bench then concludes by aptly holding and directing in para 17 that, "With the above directions, the present writ petition is disposed of along with pending applications."

In conclusion, it is made amply clear by the Delhi High Court in this noteworthy judgment that mere pendency of criminal case does not automatically disqualify individual from exercising the right to long-term opportunities abroad. It also very rightly orders the police to issue PCC for the visa of petitioner. No denying!